Physicians, limited resources and liability

In brief

Consider the following scenarios:

• A patient with acute cardiac problems is referred for possible transplantation. The specialist and her team evaluate the patient and decide that, all things being equal, a heart transplant is indicated. However the patient is a heavy smoker and drinker, and there is a long waiting list for the procedure. The team decides that the patient does not meet all the criteria for transplantation; consequently, the patient is not put on the waiting list. The patient dies a few weeks later, and next of kin take the physicians and hospital to court.

• A new treatment has been developed for a particular condition. This very expensive treatment is also very effective, but it is not funded by the provincial health insurance plan. Therefore, the physician does not offer it; instead, he treats his patient using treatments insured under the health plan. The outcome is not as good as it might have been had the new treatment been used. The patient learns of the new treatment and takes legal action, charging the physician with malfeasance.

• For budgetary reasons, Hospital A has decided not to perform a certain procedure. The procedure could be done at another hospital, but because of the distance the physicians from Hospital A do not have privileges at Hospital B. Consequently, their patients do not receive the operation and do not do as well as those who are treated at Hospital B. The patients sue their physicians and Hospital A for not providing appropriate and necessary health care.

The fear is that the refusal to allocate scarce resources, or the failure to provide treatment that is available in principle but not in a particular setting, exposes the physician and hospital to liability. In some quarters, this fear has almost reached the level of dogma.

[In a real-life case, a Halifax man who has had four heart attacks has instructed the executor of his estate to sue the provincial minister of health if he dies while on the waiting list for cardiac catheterization. The test, which can only be done at the Queen Elizabeth II Health Sciences Centre in Halifax, was ordered May 16; almost 6 weeks later, the patient still had no date for the test. In May, a Halifax family physician became so concerned about the limitations arising because of massive health-system reform that he told the media he hopes a patient will sue him, the minister of health and the provincial premier for providing inadequate care. A lawsuit would determine where fault for the system's shortcomings lies, the physician said. -- Ed.]

Fear of legal action can influence health care decision making, but even when it does not it can produce severe stress. It is important to be perfectly clear on what resource limitation means to the ethical obligations of physicians, and what does and does not follow as a result of their role as gatekeeper.

The first scenario presents neither ethical nor legal problems. Physicians have always been gatekeepers. The very concept of selective allocation of limited resources even has its own term in the medical vocabulary -- triage -- and even though some patients experience a negative outcome because of it, this has never been considered a reason for saying that a physician has acted unethically. Likewise, no one has sued a physician successfully for using appropriate triage standards. Triage may have a tragic result, but it is inappropriate to call physicians unethical because they have made such decisions.

The modern physician faced with limited resources is often caught in a triage situation. The ethical reasoning that exonerates traditional triage also supports its use in the contemporary setting; physicians have an obligation to use the limited resources available to them in the best way possible by developing criteria of accessibility and selection. As long as these criteria are medically appropriate, and as long as they are applied consistently, physicians are acting ethically. That someone may suffer or even die may be tragic, but not all tragedy translates into moral fault.

The second case calls attention to one of the more fundamental ethical principles: impossibility. Canadian physicians practice within limits that are set by provincial and territorial health care insurance plans. If certain treatment options are not included in these plans, then they simply are not treatment choices open to physicians. Doctors cannot offer treatments that are unavailable, and consequently cannot be held morally responsible for failing to provide the relevant treatments.

If there are treatments that are better than those covered by the provincial plan, a conscientious physician might tell patients about them to give them the option of looking around for a way to obtain these other treatments. However, a physician does not fail in his duty when he does not provide a treatment that is unavailable to him.

The third case also raises no ethical problem. Although hospital budgets always have been and always will be limited, neither administrators nor physicians are responsible for this. No one is responsible; budget limitations arise because human society itself is limited and all resources are finite. Hospital administrators have to work within the budgets they are given.

That one hospital provides a service while another does not is not an indication that the first hospital is acting irresponsibly or unethically. Hospitals serve catchment areas. Different catchment areas have different needs, depending on the demographics and the health profiles of their client populations. (This in part underlies the drive for regionalization in health care.)

A responsible hospital administration will use its limited funds in the most cost-effective way possible to meet the needs of its client population. When resources are limited, only the services that address the major health problems of the client population in the most cost-effective way can be provided. This means that, on occasion, certain services will not be available in a particular location.

However, even though the service might be provided by another hospital in another area, the hospital administration has not acted unethically by making a different choice. Neither is a physician morally guilty for not providing treatment that is available in one setting but not in another. A hospital would act unethically only if it had selected its services irresponsibly -- for example, if the priorities it had set did not accurately reflect the typical health care needs of its client population. Likewise, a physician would be acting unethically only if he did not inform the administration of the needs of his patients and did not do his best to see these needs met. But that is all he can do. The principle of impossibility comes into play once again; one cannot have a duty to do the impossible.

As to the fear of being sued, a wise lawyer once said: "You can be sued for anything, by anyone, at any time. The question is not whether you will be sued -- because no one can prevent that -- but whether you will be sued successfully."

Ethical conduct is the best defence against successful lawsuits. Acting ethically does not mean providing all possible health care modalities, but it does mean practising in the best way possible within the limits of the situation.

Finally, it is sometimes argued that the Canada Health Act (CHA) demands that health care consumers have the right to any of the health care services that are provided in any province. The CHA requires no such thing; it does require that if a particular treatment is covered under a provincially insured health care plan, then it must be available in an equitable manner.

It does not mean that each province must insure all possible treatments or that every hospital must offer every treatment. It means merely that each province must take reasonable steps to ensure that all qualified residents have equal opportunity of access, and that hospitals may not discriminate among clients for medically inappropriate reasons. These conditions can be met by providing ambulance and transfer services. Inevitably, this will lead to negative outcomes for some patients.

However, one cannot have a duty to do the impossible. Resource limitations -- and we have so many of them today -- make it necessary to make choices.